These terms and conditions apply to all CCL clients who haven’t signed a separate CCL Master Services Agreement.
1. These Terms
These Terms apply whenever CCL provides services of any kind or does anything else for clients except where a separate written agreement covers other services we provide. In these Terms, we have used ‘we’ or ‘us’ for CCL in relation to our provision of services for you, ‘you’ for the Client and ‘service’ or ‘services’ to cover all goods and services of any kind we provide and anything else we do.
2. Our business commitments to you
We want to make it easy for you to do business with us. We are committed to:
- putting you in touch with the right person to answer your enquiries
- responding to your needs quickly and effectively
- keeping you informed about new services which may benefit your business.
Tell us if you have any complaint about our service. Our aim is always to resolve any complaints quickly and fairly.
3. Our service commitments to you
Whenever we provide services to you, we will:
- provide the services with care and skill
- make sure the services do everything we say they will do for a reasonable time after we start providing them for you
- begin providing the services within a reasonable time as agreed with you
- do our best to provide highly reliable services, however, given the nature of information technology products and services (including our reliance of systems and services that we do not own or control), we cannot promise or guarantee they will be continuous or fault-free
- be available to fix any fault or disruption which occurs in the services
- Whenever our services involve us providing equipment (or other goods) to you, we give you these extra offerings:
- the equipment will be safe, durable, free from known defects and of good appearance and finish
- it will be fit for the purposes for which that type of equipment is normally provided
- it will do everything we say it will do for a reasonable time after we provide it to you
- we have the right to provide the equipment to you and it will be free from any undisclosed security
- we will not interfere with your possession of the equipment except where both of us agree otherwise
- it will be as we describe or demonstrate it to you
- the equipment will be approved for connection to the network at the time we provide it to you.
4. Your general responsibilities
When we provide services for you, it’s your responsibility to:
- follow our reasonable directions about the use of our services
- use our services for lawful purposes and without annoying anyone
- make sure all information you give us or to any service provider approved by us is correct and complete
- notify us immediately of any change of your address, phone number or any other relevant contact details
- never interfere with the reasonable use of our services by our other clients
- make sure you use the service only for your own internal business use and not sell, rebill or otherwise provide any of our services to anyone else without our written consent
- obtain any authorisation, licence or consent we think is necessary for us to provide the service to you
- allow us to test the configuration of your equipment from time to time and comply with any reasonable directions given to you to reconfigure your equipment if we reasonably believe it is necessary to do so
- use our services without gaining unauthorised access to or interfering with anyone else’s computer or communications equipment
- comply with all current and/or updated applicable laws, regulations, standards and codes when using our services, including, but not limited to, the NZ Privacy Act, Fair Trading Act, Copyright Act, Defamation Act and the Crimes Act and not infringe a third party’s rights
- edit, delete or cease any future publication of any material or communication which we reasonably, and in good faith, consider to be unauthorised, misleading, objectionable, restricted, defamatory, illegal, inappropriate or contrary to these Terms, or detrimental to our reputation or to our brand, and if you do not do so to our satisfaction, you agree that we may edit, delete, block or disconnect that material or communication ourselves
- not use, download or otherwise copy or provide (whether or not for a fee) to a person or entity, any directory of users of any of the services or other user or usage information (in whole or in part)
- not use the services, or content or anything else provided by us or available on our websites, in any way that implies an endorsement, sponsorship or association by us with any product, service, person or entity
- make sure anyone else who uses the services we provide to you, or does anything relating to them, also meets your responsibilities under these Terms. You can take steps to prevent unauthorised use of your services (for example, depending on the services, by using passwords, PIN numbers, and/or other security measures to control who gains access to and uses your service). You will not be responsible and liable for any unauthorised use of the services if such use is a result of our breach of contract or negligence.
Where we provide you with any software:
- we remain the owner or licensee of the software
- you may only use the software for your own internal business use and for the purposes for which we provide it
- you must not change or interfere with the software in any way
- you must not copy any part of the software without our permission.
We may at any time provide upgraded or new versions of the software. As long as an upgraded or new version does not adversely affect any service we provide to you, or your use of our service, you must install the upgrade or new version as soon as you reasonably can and not later than six months after we provide it to you.
6. Our charges
You must pay for the services we provide, or which are provided by a service provider approved by us, for you, no matter who uses them.
We may change our services from time to time, including as a result of regulated charges outside our control, for example levies imposed by law or charges for a regulated input required to provide you with a service.
When the charges are amended for any of our services and you are impacted by the change, we will give you one month’s notice of these changes. We’ll notify you of these changes in writing.
We may assign any amounts you owe us to another entity. Charges usually begin from the time you are connected to our network. We may at any time, if we consider it reasonable and necessary to do so, require you to satisfy us that you will be able to pay our charges.
We will send you invoices for our charges. Each invoice will tell you the due date for payment. You must pay the invoice by that date.
Our invoices are based on our records. Let us know before the due date for payment if you think there is a mistake in your invoice. We will investigate the matter straight away. While we are doing this, you do not need to pay the queried part of the invoice by the due date for payment. However, if you have already paid your invoice you may still query your invoice within six months of the due date if you think there is a mistake. You must not set-off or deduct any amount in any other circumstances.
Normally, we will be able to find out if there is a mistake in our records and get back to you promptly. If there is a mistake, we will adjust your next invoice or, if appropriate provide a credit against your account.
If there is no mistake, and if the due date for payment has already passed, you must pay the amount outstanding straight away or as otherwise agreed with us. If you do not pay an invoice by the due date for payment:
- we may either charge you a late payment fee (which reflects the costs to us of recovering money owed to us) or interest on the unpaid amount from that date until you pay it; our late payment fees are ordinarily calculated on the basis of the NZ official cash rate plus 3%
- you may be required to pay any reasonable costs that are incurred by anyone (including agents) in recovering the money you owe or in exercising any other rights, including commissions and legal costs on a solicitor and client basis
- provided we have followed our standard debt collection process and you still have not paid your outstanding balance we may withhold, suspend or restrict any service we provide for you. We will always do our best to contact you before doing this and will give you at least five business days’ notice if we are going to disconnect your services for non-payment.
8. Disrupted service
Sometimes our services can be disrupted. If this happens, we will restore them as soon as we reasonably can.
9. Your right to give up any service
You may give up any service simply by telling us. If you exercise your right to terminate a service that is subject to a minimum term, and you are ending that service prior to the minimum term, an early termination fee may apply.
Subject to any minimum term or notice period (where, as noted an early termination fee may apply), charges will stop 90 days after we receive your notice to terminate a service, unless we agree that charges will stop earlier. You can choose to continue to receive the benefit of a service during the 90 days’ notice period.
10. Our right to suspend or restrict any service
If you do not pay our charges or meet any responsibilities you have to us, we may suspend or restrict any service at any time. We will always do our best to contact you before doing this (and as noted above, will give you at least five business days’ notice if we are going to disconnect your services for non-payment). In most cases, if you have not met a responsibility you have to us (for example, where you did not pay your invoice by the due date) normal charges continue to apply during the suspension or restriction of any service. However, if following a suspension or restriction of any service we permanently disconnect that service, you will only be responsible for the charges incurred up to the date of the suspension or restriction.
Where we permanently terminate your services you will remain liable for all charges incurred up to the date of a withholding, suspension or restriction of your services. Where such suspension is before the end of a minimum term contract an early termination fee will also apply.
We may also suspend, restrict or terminate any service in other circumstances if we think it reasonable or necessary (by way of example only, to protect our network from attacks, for maintenance or repairs, or interruptions to the availability of the network). We will always do our best to contact you before doing this, but may not be able to do so in all circumstances.
11. Our right to stop providing any service
We may stop providing any of our services to you. We may do this at any time if you do not pay our charges or meet your other responsibilities under any agreement you have with us. Otherwise:
- where we have agreed to provide a service for a minimum period, we will continue providing it until the end of that period except if the circumstances set out below apply
- we will always tell you at least one month before we stop providing the service.
We may end the availability of any service, at any time if the relevant service is no longer viable, we or a service provider are unable to provide it, we or a service provider are withdrawing it from general availability, or we or a service provider are replacing it with a new service.
We may alter our services from time to time. If we alter our services in a way that reduces the service offering currently received by you and the change is within our control, we will provide you one month’s notice, of such alterations. However, if the change is outside of our control, and it is possible, we will provide you notice of the change beforehand. If the change is outside of our control and we are unable to provide you notice of the change beforehand we will provide you notice as soon as possible after the change has been made. When determining whether a change in the service offering has a negative impact on you, we will act in good faith. If you are on a minimum term contract, we will not reduce the service offering currently received by you without either your consent or giving you the option to terminate your contract without incurring an early termination fee.
12. The network
The network consists of communication facilities owned by us and other parties with whom we work, and which we use to provide our services to our clients. Acquiring our services does not give you any rights in any part over the CCL Network.
13. Safeguarding the network
For your own safety, and so that our services to you and our other clients are not disrupted, it is important that you help safeguard the network. It is your responsibility to:
- let us or any of our agents or subcontractors have reasonable, safe access to your premises and get any consents we may need to work on the network, or anything connected to it; the people we send will carry proof of identity.
- follow our reasonable directions when connecting anything to the network and make sure it is installed to our specifications
- make sure nothing is connected or left connected to the network unless it agreed in advance with us; this helps make sure no damage occurs to the network
- never interfere with the network; only people we authorise may work on it
- make sure nothing on property or premises under your control interferes with or damages the network
- follow our reasonable directions about using any of our equipment and never interfere with it
- pay our charges for repairing or replacing any part of the network and any of our equipment you are in control of, which is lost or damaged by you or anyone you are responsible for; there is no charge where damage occurs through normal wear and tear or is the result of our breach of contract or negligence
- arrange for us to have reasonable, safe access to the premises to remove any equipment you use, as soon as we stop providing or you give up the service relating to that equipment
- make sure everyone you are responsible for also meets your responsibilities under these terms.
14. Electronic addresses and other codes
Depending on the services you acquire from us, we will arrange for appropriate electronic numbers, addresses and other codes to be allocated to you. Unless we have agreed otherwise with anybody else, all addresses, numbers and other codes allocated to you remain the property of CCL and you must not transfer or sell your address, number or code to anyone else.
You are responsible for keeping confidential your CCL account number and any personal identification code or password used by or allocated to you. We may assume that any request or instruction we receive is authorised by you if it is accompanied by suitable verification (for example, your CCL account number, personal identification code or password).
We may change any number we have allocated and allocate you a new number. We will always give you as much notice as we reasonably can before making any change.
15. Fixing faults
Fixing faults in the network
We will take all steps that we reasonably can to arrange for all faults on the network to be repaired. There is no charge for this except where you or anyone you are responsible for, cause the fault. We will begin fixing the fault as soon as we reasonably can, we will advise you of our current service level targets when a fault is reported.
Fixing other faults
We will fix faults in equipment provided by us which may occur through normal wear and tear or a defect in design, materials or manufacture (during our normal business hours).
Where other charges apply
Other charges apply where we investigate or fix anything not covered above. If you need our help, call us and we will tell you how we may be able to help and what our charges may be.
The Consumer Guarantees Act 1993 is not applicable to our engagement, as we agree that our services are provided for the purposes of a business, as defined in that Act.
Your liability to us:
- you accept your liability to us for breach of contract or negligence, and
- you are not liable for any loss to the extent that it is caused by us (for example, through our breach of contract or negligence).
- If you are ever liable to us your liability is limited to the greater of:
- $50,000 for any event or series of related events; or
- The total value of 12 months worth of fees, from date of the event first occurring which may have caused any loss.
Provided we notify you of our claim within twelve months after we reasonably become aware of the occurrence of the relevant event or series of events that gave rise to our claim. These limitations do not apply to your obligation to pay any charges, for any loss or damage caused by fraud, gross negligence, wilful breach or wilful damage.
We may become aware that we have suffered loss before you do. If we suffer any loss as a result of this engagement, we agree to take reasonable steps to avoid or minimise our loss and that you are not liable for any loss that results from our failure to take reasonable steps to do so.
Our liability to you:
- we accept our liability to you for breach of contract or negligence, and
- we are not liable for any loss to the extent that it is caused by you (for example, through your breach of contract or negligence).
We are not liable to you for any indirect or consequential loss, or for any loss of profits, revenue, goodwill, business or anticipated business or anticipated profits or savings.
You may become aware that you have suffered loss before we do. If you suffer any loss as a result of this agreement, you agree to take reasonable steps to avoid or minimise your loss and that we are not liable for any loss that results from your failure to take reasonable steps to do so.
We always aim to provide quality services to you, and exercise reasonable skill and care in performing our obligations to you. However, if we are prevented from performing any obligation in this agreement by reason of any act of God, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo or any other circumstance beyond our reasonable control, we will try to advise you of the existence of the circumstances and its expected duration, and the obligations that are impacted by the circumstances. Our performance of this agreement and provision of services to you will, to the extent that it is made impossible or impracticable by such circumstances (despite us taking reasonable steps to provide the services) will be suspended until such circumstances cease to exist. We are not liable to you for any failure or delay in performing any obligation set out in this agreement in the circumstances contemplated here. You will not be required to pay any charges for any services to the extent that such services are not provided by us due to the circumstances contemplated here.
CCL nor Spark, and/or any network operator and/or third-party supplier (including their officers, employees, contractors and agents) will not be liable to you for loss or damage of any kind arising from your use of the services. This clause creates a right and benefit that Spark, network operators and/or suppliers can enforce as a defence to any claim.
17. Limitation of Our liability
If we or any of the other parties listed in clause 16 are ever liable to you for any reason, the maximum combined amount we and all the other parties listed will have to pay you and anyone else who uses the services we provide for you (together), will be the greater of:
- $50,000 for any event or for any series of related events; or
- the value of 12 months’ worth of fees, from date of the event occurring which may have caused any loss
Provided that you notify us of your claim within twelve months after you reasonably became aware of the occurrence of the relevant event or series or events that gave rise to your claim.
18. Our rights to recover expenses from you
Where you do not meet your responsibilities to us, you must pay any reasonable expenses we incur in collecting any money you owe us or in exercising any of our other legal rights.
We recommend you talk to your insurer about arranging suitable cover for risks of loss or liability arising from this agreement.
19. Using information about you
You may ask to see information we hold about you, as long as we can readily retrieve it, and ask for any details that are wrong to be corrected. We, and to the extent appropriate, any service providers approved by us, may hold the information and share it to the extent appropriate with each other, with CCL employees and agents and with credit reference and debt collection agencies. This enables us, to:
- provide services to you and others
- help prevent and investigate instances of fraud
- send you invoices and recover and report on money you owe
- keep you informed of services available to you from us and other people
- exercise any lawful right any of us has (which includes registration and maintenance of financing statements under the Personal Property Securities Act 1999)
- help us make risk assessments in future service applications and to build credit controls and decision-making systems. It may also be used to help credit reference agencies build models they use to help other organisations make credit and fraud protection and detection decisions.
20. Confidential information
You must keep confidential any information you receive from us which you would expect to be confidential or commercially sensitive. Any pricing or network or equipment design information must be treated as confidential. You may only disclose confidential or commercially sensitive information if you are required to by law, or applicable stock exchange rules.
21. Intellectual property rights
We or others may have intellectual property rights in the services and in any equipment, including software, we provide to you. These rights include, for example, all copyright, trademark and design rights relating to the services or equipment. All those rights are retained when we provide services or equipment to you.
Any intellectual property rights arising from any improvement or change to any service devised or made by anyone belongs to us.
22. CCL Agents or Service Providers
We may have CCL-approved agents or service providers approved by us perform and have the benefit of our side of any agreement you have with us.
You may assign and have someone else perform your side of any agreement you have with us as long as you first get our written approval. We may assign and have someone else perform our side of any agreement you have with us. We will tell you if we do this.
24. Notices and invoices
We will send invoices and other notices to the last physical or electronic address you have given us. We can assume any invoice or notice we send by post has been delivered three days after we post it and, if sent electronically has been received by you on the date it was sent. Please tell us if you change your address.
You also agree that all agreements, notices, disclosures and other communications that we provide you electronically, satisfy any legal requirement that such communication be in writing.
25. Other terms
Other terms apply to some of our services. Where we provide those services, we will tell you about the other terms.
26. Responsibilities under other agreements
We must meet all our responsibilities to you under every agreement we have with you. You must meet all your responsibilities under every agreement you have with us.
27. Each term separately binding
Each term of every agreement you have with us is separately binding. If for any reason we or you cannot rely on any term, all other terms remain binding.
28. Rights and responsibilities that continue
The ending of any agreement you have with us does not affect any rights and responsibilities which are intended to continue or come into force afterwards.
29. Changing these terms
We may change these terms. We may do this by changing or removing existing terms or by adding new ones.
We will tell you about any applicable changes to these terms by writing to you . Ask us at any time for a copy of our current terms. If you do not agree to any changes you may exercise your right to terminate our engagement.
Any other changes to the terms of any agreement you have with us must be in writing and signed by us.
30. No waiver
Except if we have waived a right under these terms and notified you in writing, no delay or failure to exercise a right under these terms prevents us exercising that or any other right on that or any other occasion.
If any provision of these terms is unlawful and unenforceable, it will be severed from these terms to the extent it is unlawful and unenforceable. The rest of these terms will remain in force.
32. New Zealand law applies
All our services are provided under New Zealand law. You may take action against us only in a New Zealand court.
We have standard service schedules for each service we provide. Some services also have specific service targets and additional terms such as disclaimers or exclusions of liability. Those service descriptions and specifications form part of these terms and describe our obligations to you, including situations where our obligations are limited or do not apply.